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COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

SJC-11433

_____________________________

COMMONWEALTH OF MASSACHUSETTS, Plaintiff-Appellee,

v.

STEVEN J. MORSE, Defendant-Appellant.

______________________________

______________________________________________________

BRIEF FOR AMICUS CURIAE

MASSACHUSETTS ASSOCIATION OF CRIMINAL DEFENSE LAWYERS _____________________________________________________

Monica R. Shah, B.B.O. #664745 Zalkind Duncan & Bernstein LLP 65A Atlantic Avenue Boston, MA 02110 (617) 742-6020 mshah@zalkindlaw.com

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TABLE OF CONTENTS

TABLE OF AUTHORITIES................................ ii

ISSUES PRESENTED..................................... 1

INTEREST OF AMICUS CURIAE............................ 1

STATEMENT OF THE CASE................................ 4

STATEMENT OF FACTS................................... 4

ARGUMENT............................................. 4

I. Admission of the Defendant’s Unequivocal Denial Violates Massachusetts’ Long-Standing Common-Law Rule Precluding Such a Statement from Evidence. ......... 4

II. Charging a Criminal Defendant with the Crime of Misleading an Investigator under G.L. c.268 § 13B for His Denial of Accusations that Will Compel Him to Furnish Evidence Against Himself Violates His Rights under Article 12. ................................. 14

III. The Misleading-an-Investigator prong of G.L. c.268 § 13B Is Void for Vagueness As Applied to the Defendant’s Case. ................................. 17

CONCLUSION.......................................... 24 

 

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TABLE OF AUTHORITIES  

Cases

Brear v. Fagan, 447 Mass. 68 (2006)................. 13

Brogan v. United States, 522 U.S. 398 (1998)........ 23

Bryan v. United States, 524 U.S. 184 (1998)......... 21

Cheek v. United States, 498 U.S. 192 (1991)......... 21

Commonwealth v. Cruz, 373 Mass. 676 (1977)..... 7, 8, 9

Commonwealth v. Diaz, 453 Mass. 266 (2009).......... 11

Commonwealth v. Figueroa, 464 Mass. 365 (2013).. 14, 20

Commonwealth v. Locke, 335 Mass. 106 (1956).......... 8

Commonwealth v. Mavredakis, 430 Mass. 848 (2000).... 16

Commonwealth v. Nawn, 394 Mass. 1 (1985)............. 8

Commonwealth v. Spencer, 465 Mass. 32 (2013)..... 7, 11

Commonwealth v. Trefethen, 157 Mass. 180 (1892)... 4, 5

Commonwealth v. Twombly, 319 Mass. 464 (1946)........ 8

Commonwealth v. Waite, 422 Mass. 792 (1996)......... 10

Commonwealth v. Womack, 457 Mass. 268 (2010)..... 7, 10

Commonwealth v. Wotan, 422 Mass. 740 (1996)......... 13

Emery's Case, 107 Mass. 172 (1871).................. 16

Grayned v. City of Rockford, 408 U.S. 104 (1972).... 19

Kolender v. Lawson, 461 U.S. 352 (1983)............. 18

Lambert v. California, 355 U.S. 225 (1957).......... 21

Lipsitt v. Plaud, 466 Mass. 240 (2013).............. 13

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Opinion of the Justices to the Senate, 412 Mass. 1201 (1992) ............................................................................................................ 16, 17, 18 

Passatempo v. McMenimen, 461 Mass. 279 (2012) ............................... 13 

Pineo v. White, 320 Mass. 487, 491 (1946) ........................................ 13 

Ratzlaf v. United States, 510 U.S. 135 (1994); ............................ 21 

United States v. Moore, 612 F.3d 698 (D.C. Cir. 2010) ............ 24 

United States v. Williams, 553 U.S. 285 (2008) ...................... 18, 20 

United States v. Yermian, 468 U.S. 63 (1984) ................................. 24 

Constitutional Provisions

Article 12 of the Massachusetts Declaration of Rights .............................................. passim

 

 

Statutes

18 U.S.C. § 1001.................................... 23

18 U.S.C. § 1512.................................... 20

18 U.S.C. § 1515.................................... 20

G.L. c. 90B §8................................... 8, 12

G.L. c. 268 § 13B............................... passim

Other Authorities

Alex Kozinski & Misha Tseytlin, You're (Probably) a Federal Criminal, in IN THE NAME OF JUSTICE 43 (2009) .................................................. 24

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Brodin & Avery, Handbook of Massachusetts Evidence § 12.6.8 (8th ed. 2006) ............................... 4

First Circuit Pattern Criminal Jury Instructions § 4.18.1001 (2003). ................................. 25

Fred Contrada, Northwestern DA uses new section of witness intimidation law, The Republican (July 10, 2012) ............................................. 22

USSG § 3C1.1, application n.2....................... 25

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ISSUES PRESENTED  

On May 2, 2013, this Court solicited amicus

briefs on the following questions:

Whether a defendant can be found guilty of violating G.L. c.268, § 13B, based on his allegedly false denials in response to police questioning about possible criminal activity; whether the statute violates the defendant's rights under article 12 of the Declaration of Rights ("No subject shall be . . . compelled to accuse, or furnish evidence against himself . . . ") or is void for vagueness.

INTEREST OF AMICUS CURIAE  

The Massachusetts Association of Criminal Defense

Lawyers (MACDL), as amicus curiae, submits this brief

in support of defendant-appellant Steven J. Morse.

MACDL is an incorporated association representing more

than 1,000 experienced trial and appellate lawyers who

are members of the Massachusetts Bar and who devote a

substantial part of their practices to criminal

Defense.

MACDL is dedicated to protecting the rights of

the citizens of the Commonwealth guaranteed by the

Massachusetts Declaration of Rights and the United

States Constitution. MACDL seeks to improve the

criminal justice system by supporting policies and

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procedures to ensure fairness and justice in criminal

matters. MACDL devotes much of its energy to

identifying, and attempting to avoid or correct,

problems in the criminal justice system. It files

amicus curiae briefs in cases raising questions of

importance to the administration of justice.

MACDL contends that the Commonwealth should not

be permitted to charge defendants like Steven Morse,

who unequivocally deny possible criminal wrongdoing in

response to police questioning, with violations of the

obstruction-of-justice prong of the witness

intimidation statute, G.L. c. 268 § 13B (“§ 13B”).

The statute violates Massachusetts’ long-standing

common-law rule precluding accusations and unequivocal

denials from evidence. The Legislature did not

specifically abrogate this common-law rule, as would

be required, when it amended the statute in 2006 to

criminalize misleading an investigator. (See infra

Part I.)

The enforcement of § 13B against defendants who

unequivocally deny possible use of illegal substances

deprives those individuals of the right under Article

12 of the Massachusetts Declaration of Rights not to

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furnish evidence against themselves. (See infra Part

II.)

The statute’s failure to provide any standard for

the term “misleading” also renders it void for

vagueness, particularly where, as here, the accusation

itself calls for a subjective opinion that cannot be

proven true or false. The expansion of § 13B by the

Legislature, coupled with the inherent vagueness of

the statute, now gives prosecutors discretion to

charge defendants with violations of § 13B by

introducing evidence of accusations and unequivocal

denials that otherwise would be barred by common law.

Given that the legislative history is silent on

whether the Legislature considered the serious legal

and policy implications of the 2006 amendment and

there is no indication that it intended to change the

common law, the obstruction-of-justice prong of § 13B

should be invalidated and Morse’s conviction should be

vacated. (See infra Part III.)

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STATEMENT OF THE CASE

 

Amicus adopts the Statement of the Case as set

forth in the Appellant’s opening brief.

STATEMENT OF FACTS  

Amicus adopts the Statement of the Facts as set

forth in the Appellant’s opening brief.

ARGUMENT

I. Admission of the Defendant’s Unequivocal

Denial Violates Massachusetts’ Long-Standing Common-Law Rule Precluding Such a Statement from Evidence.

It is well-settled Massachusetts law that

”[n]either the prosecution nor the defense can admit a

defendant’s denial of an accusation after warnings.”

See Brodin & Avery, Handbook of Massachusetts Evidence

§ 12.6.8, at 701 (8th ed. 2006). This rule dates back

over a century ago to this Court’s decision in

Commonwealth v. Trefethen, 157 Mass. 180, 197 (1892).

The trial court failed to adhere to the rule here when

it allowed the Commonwealth to improperly use the

defendant’s denial of an accusatory statement against

him on charges of misleading an investigator in

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violation of G.L. c. 268 § 13B, which inevitably

impacted the jury’s consideration of the substantive

homicide charges against the defendant. The trial

court’s ruling undermined the purpose of the rule,

unfairly prejudiced the defendant, and effectively

doubled the punishment against him.

The rationale for the rule is set forth in

Trefethen. There, the day after the victim’s

disappearance, the defendant unequivocally denied to

the victim’s mother her accusation that he met with

the victim on the night of her murder and “carried her

off.” Trefethen, 157 Mass. at 196. The Commonwealth

introduced these statements and other similar denial

evidence in its case-in-chief. Id. at 196-97.

Defense counsel timely objected, but the objections

were overruled and the evidence was presented to the

jury despite the fact that the defendant did not

testify. Id. While the Court ultimately reversed the

case on other grounds and concluded that admission of

this evidence was not prejudicial to the defendant, it

held that, “[i]f a defendant is charged with crime,

and unequivocally denies it, and this is the whole

conversation, it cannot be introduced in evidence

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against him as an admission.” Id. at 197. The Court

explained:

[I]t is not competent for the government to contend that a denial of guilt is of itself evidence against the defendant. To argue that by the other evidence the defendant is shown to be probably guilty, and that therefore his denial of guilt is false, and is additional evidence against him, ought not to be permitted. . . . [W]hen the defendant denies generally that he is guilty, this statement cannot be shown to be false, except by proving that he is guilty beyond a reasonable doubt; and then it is unnecessary. If there is a reasonable doubt of his guilt on all the other evidence, the fact that he unequivocally denied his guilt is not, of itself, evidence against him; and the denial cannot be assumed to be false because it has not been proved to be false by sufficient evidence.

Id. at 199.

Therefore, under the rationale set forth in

Trefethen, the Commonwealth cannot introduce an

unequivocal denial of an accusation as evidence

against the accused at trial for that crime because

the jury has not yet determined that he committed the

crime beyond a reasonable doubt based on other

evidence. In essence, the defendant’s denial of the

accusation is inadmissible hearsay because it is used

to prove both the truth of the accusation and the

falsity of defendant’s denial.

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In Commonwealth v. Cruz, 373 Mass. 676, 691

(1977), this Court further explained the purpose of

the rule:

[T]here are two basic reasons why accusatory questions followed by unequivocal denials are to be excluded from evidence. The first reason rests on the hearsay rule. . . . Accusatory statements and unequivocal denials, when offered as evidence against the defendant for the purposes of proving the Commonwealth's case-in-chief, are simply out-of-court statements offered to prove the truth of the matter asserted. As such, they plainly are hearsay statements which must be excluded. . . . A second subsidiary reason given for the exclusion of accusatory statements followed by unequivocal denials is that the relevance of this type of dialogue may be far outweighed by potential prejudice to the defendant.

Id. at 692 (internal citations omitted) (emphasis

added).

For well over a century, this Court has

repeatedly applied this rule to hold that neither the

Commonwealth nor the defense may introduce accusation

and denial evidence at trial. See, e.g., Commonwealth

v. Spencer, 465 Mass. 32, 49 (2013); Commonwealth v.

Womack, 457 Mass. 268, 272 (2010); Commonwealth v.

Waite, 422 Mass. 792, 801 (1996); Commonwealth v.

Nawn, 394 Mass. 1, 4 (1985); Commonwealth v. Cruz, 373

Mass. 676, 691 (1977); Commonwealth v. Locke, 335

Mass. 106, 115 (1956); Commonwealth v. Twombly, 319

Mass. 464 (1946).

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Morse’s unequivocal denial of the accusation that

he had taken any “substances that could’ve impaired

[his] ability to . . . be aware of what was going on

around [him]” (Appellant’s Br. 7) was clearly

inadmissible under Trefethen and its progeny. The

statement was an extrajudicial denial of an accusation

that he had consumed other substances that could have

impaired his ability to operate a vessel. This fact

is an element of one of the charged crimes. See G.L.

c.90B § 8A(2) (criminalizing operation of “a vessel on

the waters of the commonwealth . . . while under the

influence of intoxicating liquor, or of marihuana,

narcotic drugs, depressants, or stimulant substances,

all as defined in chapter ninety-four C, or the vapors

of glue.”). The denial evidence was introduced in the

Commonwealth’s case-in-chief as evidence of the

defendant’s guilt on the charge of misleading

investigators under § 13B. The accusation and the

denial were admitted into evidence to prove the truth

of the matters stated therein – i.e., that Morse took

substances that impaired him on the day of the

incident and that his denial was false. Therefore the

statements “plainly are hearsay statements which

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[should have been] excluded” at trial. See Cruz, 373

Mass. at 692.

The evidence was unfairly prejudicial to Morse.

The admission of the accusation and unequivocal denial

cannot form the basis for the criminal charge that a

defendant mislead investigators under § 13B because

such statements are inadmissible hearsay and,

therefore, inherently unreliable for precisely the

reasons set forth in Trefethen: At the time of the

admission of the statements into evidence, the

Commonwealth had not proven beyond a reasonable doubt

that Morse had taken any substances that could have

impaired him.

Further, although the trial judge attempted to

limit the denial evidence solely to the issue of guilt

or innocence on the charge that he misled

investigators under § 13B, the evidence no doubt

spilled over to the jury’s consideration of the

substantive homicide charges. As the Court stated in

Womack, “[t]he core of any prejudice is more likely

caused by admission of the accusations than the

denials.” 457 Mass. at 276. Moreover, by introducing

both the accusation and the denial before the jury,

the Commonwealth implicitly identified Morse as a liar

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without having to explicitly use that word in its

closing.

The Legislature’s 2006 amendment to § 13B

expanded the scope of the statute from solely

pertaining to witness intimidation to include

misleading law enforcement authorities. This

amendment creates an opening for the Commonwealth to

unlawfully prosecute persons based on evidence that is

barred under the common law. See Commonwealth v.

Waite, 422 Mass. 792, 801 (1996) (applying Trefethen

rule to hold that admission of defendant’s post-

Miranda denials of an officer’s accusations and

prosecutor’s reference to defendant as “a liar” was

“clear error”).

The introduction of denial evidence when framed

as an attempt to mislead investigators under § 13B is

also highly prejudicial because the denial evidence is

effectively transformed into consciousness-of-guilt

evidence on the substantive homicide charges. Past

attempts by the Commonwealth to introduce denial

evidence to prove consciousness of guilt have been

repeatedly rejected by this Court. Simply alleging

that a defendant’s denial of an accusation is false

does not make the denial admissible as evidence of

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consciousness of guilt. “If such were the case, the

rule prohibiting evidence of statements of denial

would be eviscerated, because every denial would then

become admissible as evidence of consciousness of

guilt.” Commonwealth v. Diaz, 453 Mass. 266, 273

(2009); accord Commonwealth v. Spencer, 465 Mass. 32,

50 (2013). With the Legislature’s expansion of § 13B,

a defendant’s denial of accusations against him can

now be admitted into evidence, charged as a separate

crime, and essentially considered by the jury as

consciousness-of-guilt evidence on the substantive

crime despite the common-law proscription against it.

Morse was also especially prejudiced by the

admission of the denial evidence against him because

it resulted in his conviction under § 13B, the only

felony conviction against him. (Appellant Br. 2-3.)

He was ultimately convicted of just one substantive

homicide charge against him, homicide by vessel under

G.L. c. 90B §8B(2), which is a misdemeanor. (Id.)

The trial judge sentenced him to two consecutive two-

and-half year terms of incarceration for the § 13B and

homicide by vessel charges. (Appellant Br. 3.)

Allowing otherwise inadmissible hearsay into evidence

based on the inclusion of the § 13B charge therefore

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resulted in a felony conviction and effectively

doubled his sentence. Had the common-law rule

precluding denial evidence been followed, the

defendant would have only been convicted of a

misdemeanor on the homicide by vessel charge, if at

all, and sentenced to half as much time.

The Legislature’s 2006 amendment to § 13B, as

interpreted by the lower court, brought about a

radical change in the common law and steep increase in

the penalties applied to a criminal defendant. Such a

change “will not be lightly inferred,” but rather “the

Legislature’s intent must be manifest.” Lipsitt v.

Plaud, 466 Mass. 240, 245 (2013) (quoting Passatempo

v. McMenimen, 461 Mass. 279, 290 (2012) (internal

citations and quotation marks omitted)); see Brear v.

Fagan, 447 Mass. 68, 72 (2006) (recognizing that

statute should not be interpreted “as effecting a

material change in or a repeal of the common law

unless the intent to do so is clearly expressed.”

(quoting Pineo v. White, 320 Mass. 487, 491 (1946)).

Moreover, penal statutes, such as § 13B, must be

strictly construed against the Commonwealth and in

favor of the defendant.   See Commonwealth v. Wotan, 422

Mass. 740, 742-43 (1996).

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Here, as set forth in detail in Morse’s brief,

there is no evidence that when the Legislature amended

§ 13B in 2006 by adding section (c)(iii), which

criminalizes “(c) misleading . . . (iii) a judge,

juror, grand juror, prosecutor, police officer,

federal agent, investigator, defense attorney, clerk,

court officer, probation officer or parole officer,”

G.L. 268 § 13B(c)(iii), the Legislature specifically

intended to abrogate the long-standing common law rule

precluding denial evidence that has consistently been

applied in Massachusetts courts. (See Appellant

Opening Br. 21-24.) This Court has recognized that

prior to 2006, § 13B was limited to protect against

the intimidation of “only witnesses and jurors in a

criminal investigation or in any stage of a trial,

grand jury, or other criminal proceeding,” but that

Ҥ 13B was amended and rewritten in 2006 to expand the

scope of the conduct prohibited, the classes of

victims protected, and the types of criminal

proceedings covered.” Commonwealth v. Figueroa, 464

Mass. 365, 369 (2013) (interpreting “misleading” prong

of § 13B as applied to probation officers). However,

there is simply no mention in the Act or the floor

debate leading up to its enactment of the

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Legislature’s intent to criminalize or make admissible

in court an accusation and a suspect’s denial of

guilt. Absent such clear intent, this Court cannot

infer that the Legislature intended to eliminate the

common-law rule barring accusations and denials from

evidence. Therefore, a criminal defendant cannot be

found guilty of § 13B solely based on his unequivocal

denial of an accusation.

II. Charging a Criminal Defendant with the Crime

of Misleading an Investigator under G.L. c.268 § 13B for His Denial of Accusations that Will Compel Him to Furnish Evidence Against Himself Violates His Rights under Article 12.

The defendant was forced to choose between

refusing to incriminate himself by providing the

police with complete information about his drug use or

facing felony charges for misleading the police under

§ 13B by denying the accusation of such drug use. By

placing the defendant in this dilemma, the

Commonwealth deprived him of his right not to “accuse,

or furnish evidence against himself” under Article 12

of the Massachusetts Declaration of Rights.

As this Court has repeatedly recognized, Article

12 provides greater protection against self-

incrimination than does the Fifth Amendment. See

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Commonwealth v. Mavredakis, 430 Mass. 848, 858-59

(2000). Specifically, Article 12’s protection against

self-incrimination “applies equally to any compulsory

disclosure of his guilt by the offender himself,

whether sought directly as the object of the inquiry,

or indirectly and incidentally for the purpose of

establishing facts involved in an issue between other

parties.” Opinion of the Justices to the Senate, 412

Mass. 1201, 1209 (1992) (quoting Emery's Case, 107

Mass. 172, 181 (1871)). Article 12’s protection

against “furnishing” evidence against oneself

“protects a person from being compelled to disclose

the circumstances of his offence, the sources from

which, or the means by which evidence of its

commission, or of his connection with it, may be

obtained.” Id. (quoting Emery's Case, 107 Mass. at

182). Here, the defendant was charged and convicted

of misleading an investigator in violation of § 13B

because he refused to disclose both the facts and

circumstances that would have assisted the

Commonwealth in its investigation of the alleged

commission of a possible criminal offense.

Under this Court’s decision in Opinion of the

Justices, which held that admission of a suspect’s

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refusal to take a breathalyzer test violated Article

12, a suspect cannot be placed in the untenable

position of having to “choose between two

alternatives, both of which are capable of producing

evidence against him.” 412 Mass. at 1211.

Specifically, “The accused is . . . placed in a

‘Catch-22’ situation: take the test and perhaps

produce potentially incriminating real evidence;

refuse and have adverse testimonial evidence used

against him at trial.” Id.

Here, the defendant was placed in a similar

Catch-22 dilemma. Any answer he provided to the

investigator would have provided the Commonwealth with

incriminating evidence. His denial of the accusation

resulted in criminal charges for misleading an

investigator. His truthful answer would have resulted

in further investigation of him and possible evidence

of drug use. Under these circumstances, the

defendant’s denial of drug is use is no different from

refusal evidence, which “is both compelled and

furnishes evidence against oneself.” Opinion of the

Justices, 412 Mass. at 1211. The application of § 13B

in these circumstances therefore deprived the

defendant of his rights under Article 12.

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III. The Misleading-an-Investigator prong of G.L. c.268 § 13B Is Void for Vagueness As Applied to the Defendant’s Case.

 A statute is constitutionally vague when it fails

“to provide a person of ordinary intelligence fair

notice of what is prohibited, or if it is so

standardless that it authorizes or encourages

seriously discriminatory enforcement.” United States

v. Williams, 553 U.S. 285, 304 (2008); Kolender v.

Lawson, 461 U.S. 352, 357 (1983) (“[A] penal statute

[must] define the criminal offense with sufficient

definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.”);

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)

(“[L]aws [must] give the person of ordinary

intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.”). Here,

§ 13B is vague both because it failed to provide the

defendant notice of the prohibited conduct and because

it is so standardless that it risks arbitrary

enforcement.

The question posed to the defendant, whether he

had taken “any substance that could’ve impaired his

ability to be aware” called for a subjective opinion,

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not an objective fact. There is no evidence the

defendant understood the question or what he was

supposed to answer. Nor is there any evidence that he

knew a false or wrong answer would lead to criminal

prosecution for a separate crime, or that he had any

intent to mislead the investigators. In fact, just

several days later, when he was specifically asked

whether he had consumed any marijuana before the

incident after the initial interview, the defendant

answered he had. (Appellant Br. 8.) Because there is

no standard set forth in the statute for the term

“misleading” under § 13B, nor had this Court defined

that term at the time of the defendant’s conviction, a

person of common understanding would not have had fair

notice of the conduct that was prohibited under these

circumstances. See Williams, 553 U.S. at 304.

In an attempt to fill this void, this Court

recently adopted the federal definition of

“misleading” from 18 U.S.C. § 1515, which is the

definition associated with the witness-tampering

statute, 18 U.S.C. § 1512. See Figueroa, 464 Mass. at

372. The definition now in relevant part includes

“knowingly making a false statement” or “intentionally

omitting information from a statement and thereby

19

causing a portion of such statement to be misleading.”

Id. (quoting 18 U.S.C. § 1515(A)-(B)). Section 13B

continues to be constitutionally vague even with this

imported definition. Although willfulness is a

requirement of the statute, see G.L. c. 268, § 13B,

this mens rea requirement is absent from the federal

definition of “misleading.” For criminal statutes

prohibiting willful misconduct, the Supreme Court

requires affirmative proof that the defendant was

aware his conduct was unlawful. See Bryan v. United

States, 524 U.S. 184, 191-92 (1998) (“[I]n order to

establish a willful violation of a statute, the

Government must prove that the defendant acted with

knowledge that his conduct was unlawful.”); Ratzlaf v.

United States, 510 U.S. 135, 141-49 (1994); Cheek v.

United States, 498 U.S. 192, 199-201 (1991); Lambert

v. California, 355 U.S. 225, 229-30 (1957). Absent a

requirement that the defendant knows that making a

false statement is prohibited conduct under the law,

the “misleading” standard adopted by the Court

continues to be vague. This is particularly true

because the common law has consistently prohibited the

introduction of accusations and denials as evidence of

guilt, which would lead a person of common

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understanding to believe that such statements could

not constitute a separate crime.

The amendment of § 13B and the failure to provide

it with appropriate standards allows prosecutors

unfettered discretion to charge defendants with

potentially multiple additional crimes. Prosecutors

can now ensure that unequivocal denials are admitted

into evidence by simply charging violations of § 13B

and could charge a separate violation for each denial,

resulting in multiple felony counts. See Fred

Contrada, Northwestern DA uses new section of witness

intimidation law, The Republican (July 10, 2012),

available at

http://www.masslive.com/news/index.ssf/2012/07/northwe

stern_da_uses_new_secti.html (last visited Jan. 12,

2013) (recognizing increase in obstruction of justice

charges in Northampton County and that defendant in

arson case was charged with six counts of misleading

law enforcement under § 13B for allegedly lying to

police).

In the parallel situation in the federal system,

the elimination of the “exculpatory no” doctrine has

resulted in expansion of federal obstruction of

justice/false statement charges. In Brogan v. United

21

States, 522 U.S. 398 (1998), the Supreme Court

broadened the scope of 18 U.S.C. § 1001, which

criminalizes the making of a false or fraudulent

statement in any matter within federal jurisdiction,

by eliminating the “exculpatory no” doctrine, which

many federal courts of appeal had adopted to foreclose

convictions under § 1001 based solely on a denial of

wrongdoing to government investigators. 522 U.S. at

401.1 Federal judges have recognized that the broad

scope of § 1001 has led to unfair applications of the

statute. See, e.g., United States v. Moore, 612 F.3d

698, 702-03 (D.C. Cir. 2010) (Kavanaugh, J.,

concurring) (“As many others have noted, § 1001

prosecutions can pose a risk of abuse and injustice.

                                                            1 The Commonwealth relies on Brogan in support of its position that the Legislature intended to criminalize exculpatory denials by amending § 13B to include misleading investigators. (Appellee Br. 27-29.) Brogan is distinguishable from the circumstances here. The century-old Trefethen rule long pre-dates the Massachusetts Legislature’s 2006 amendment of § 13B to include misleading investigators. There is no parallel common-law evidentiary rule under federal law. Instead, lower federal courts created the “exculpatory no” doctrine in an effort to narrow the application of 18 U.S.C §. 1001. See Brogan, 522 U.S. at 401. Thus, Brogan is irrelevant to this Court’s determination of whether the Massachusetts Legislature intended to abrogate the long-standing common law rule precluding admission of accusation and denial evidence.  

22

In part, that's because § 1001 applies to virtually

any statement an individual makes to virtually any

federal government official-even when the individual

making the statement is not under oath (unlike in

perjury cases) or otherwise aware that criminal

punishment can result from a false statement.” (citing

Alex Kozinski & Misha Tseytlin, You're (Probably) a

Federal Criminal, in IN THE NAME OF JUSTICE 43, 47

(2009)); United States v. Yermian, 468 U.S. 63, 82

(1984) (Rehnquist, J., dissenting)).2 To establish a

violation of § 1001, the government must prove beyond

a reasonable doubt that the defendant (1) knowingly

made a material false statement, (2) made the

                                                            2 Even under federal sentencing law, the obstruction of justice enhancement is inapplicable for mere denials of crimes:

This provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide information to a probation officer, or refusal to enter a plea of guilty is not a basis for application of this provision. In applying this provision in respect to alleged false testimony or statements by the defendant, the court should be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.

(USSG § 3C1.1, application n.2.)  

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statement voluntarily and intentionally; (3) and made

the statement in relation to a matter within federal

jurisdiction. See First Circuit Pattern Criminal Jury

Instructions § 4.18.1001 (2003), available at

http://www.mad.uscourts.gov/resources/pattern2003/Inde

x.html (last visited Jan. 16, 2014). In contrast to

the adopted definition of “misleading” under § 13B,

the federal false statement statute requires proof

that the statement was material, which is defined as

“ha[ving] a natural tendency to influence or to be

capable of influencing the decision of the

decisionmaker to which it was addressed, regardless of

whether the agency actually relied upon it.” Id.

With its materiality requirement, the federal statute

is arguably more specific than the vague definition of

“misleading” under § 13B and, thus, § 13B may have a

greater risk of abuse and unfair application.

The inherent vagueness of § 13B has given

prosecutors unfettered discretion to charge criminal

defendants under the statute and introduce unequivocal

denials into evidence when they would otherwise be

barred by the common law. Given that the legislative

history is silent regarding whether the Legislature